Judge Strikes Down Wisconsin Collective Bargaining Ban

There is nothing unusual about a judge invalidating a law on procedural grounds. But the ruling last week overturning Wisconsin’s new law restricting collective bargaining rights for state and local government employees might even fall short on a technicality test. Supporters of embattled Republican Governor Scott Walker are saying as much in the wake of Dane County (Madison) Circuit Judge Maryann Sumi’s decision last Thursday, May 26 that the conference session to move the legislation to a full-floor Senate vote this March violated the state’s Open Meetings Law. The decision, which follows a temporary injunction on March 18, effectively voids the law. But this should be seen as the latest round in an ongoing battle to redefine the scope of public sector unionism in a time of fiscal distress in many states.

Back on February 17, as many as 25,000 protestors, led by public employee union chieftains, occupied or surrounded the State Capitol Building in Madison in order to intimidate Republican state senators from holding a vote on Gov. Walker’s plan to close a projected two-year, $3.6 billion budget gap through a variety of cost-saving measures. Especially angering the demonstrators, many of whom behaved like rioters, were elements in the plan to rein in public-sector unions. The proposal would have forced public employees to: 1) contribute 5.8 percent of wages or salary to retirement plans, up from zero for most employees; 2) pay for 12.6 percent of total health care coverage, up from about 6 percent; 3) accept annual pay raises reflecting increases in the Consumer Price Index; 4) enter only into single-year contracts; and 5) forgo collective bargaining rights on issues relating to benefits and working conditions, with security-related employees – police, fire and state troopers – exempt here. Additionally, the law would require annual union recertification and end the practice of mandatory paycheck deductions for union dues.

Senate Democrats, outnumbered 19 to 14 by their Republican colleagues, responded with a desperation tactic. On February 17, they got into their cars and drove off to neighboring Illinois rather than face almost certain defeat in a floor vote. There was a crucial strategic benefit. Because the remaining (GOP) senators were one member shy of meeting the mandatory state quorum of 20 for roll call votes on fiscal issues, the Democratic senators effectively stalemated the political process. Union allies and hangers-on, recognizing their dramatic moment at hand, jammed into the Capitol and surrounding grounds and held a three-week political slumber party. And they continued to do so. By the weekend, the crowd in Madison had grown to an estimated 70,000.

Senate Republicans reintroduced their legislation, but shorn of budgetary features. The stripped-down bill, like the original one, would not apply to security-related employees. It would rule out the possibility of layoffs. And it wouldn’t affect existing contracts. On March 9, the all-Republican Senate passed the measure by 18-1. The next day, the Republican-majority General Assembly approved the bill by 53-42 in the face of hisses, jeers and anonymous death threats by opponents.

Democrats in both houses meanwhile were circulating recall petitions to boot out colleagues who sided with the governor. They also went the judicial route. Assembly Minority Leader Peter Barca (D-Kenosha) filed a complaint in state circuit court charging that GOP leaders had not provided at least 24 hours’ advance public notice of the conference committee meeting that sent the bill to the full Senate. As such, they violated the Wisconsin Open Meetings Law. Dane County (Madison) District Attorney Ismael Ozanne, a Democrat, then sued to block the law. On March 18, Judge Sumi, though an appointee of former Republican governor Tommy Thompson, issued a temporary restraining order to prevent the law from taking effect. Senate Democrats, overjoyed, came home to a hero’s welcome.

Last Thursday, to the surprise of few, Judge Sumi made her injunction permanent. She argued that the conference committee, by moving the bill on March 9 to Senate and Assembly floor votes without sufficient time lag, had broken the Open Meetings Law. “The Legislature and its committees are bound to comply with the open meetings law by their own choice,” she wrote in a 33-page decision. “Having made that choice, they cannot now shield themselves from the provisions that give the law force and effect.” Yet the evidence justifying that conclusion was far from cut and dried. Indeed, the evidence likely undermined her claim.

The Open Meetings Law (Wis. Stats. Secs. 19.81-19.98) rests on the principle that the general public is entitled to the widest range of information possible about the affairs of state government. The law mandates that government entities conduct official business in open meetings, unless otherwise specified in advance, and post advance public notices of the meetings. The March 9 conference session for the smaller collective bargaining bill, the judge wrote, though not subject to the minimum quorum necessary for a vote on a budget bill, still was subject to the Open Meetings Law. So long as at least one-half of the government body in present, a “meeting” is presumed to be for engaging in official business. Part of the law stipulates that an open meeting must be preceded by “24 hours’ notice, or two hours’ notice if ‘good cause’ is shown.” The conveners of the conference bill, Judge Maryann Sumi wrote, had not complied with this provision:

The evidence supporting the finding of violation is clear and convincing. This was not a case in which proper notice was missed by a few minutes or an hour. Not even the two-hour notice justified by “good cause,” Sec. 19.84(3), was provided. The legislators were understandably frustrated by the stalemate existing on March 9, but that does not justify jettisoning compliance with the Open Meetings Law in an attempt to move the Budget Repair Bill to final action.

The legislature, she added, had the opportunity to correct the situation but chose not to. By its inaction, it was derelict in its compliance with the law and violated the public trust. Assemblyman Barca called the ruling “a huge win for democracy in Wisconsin.” And Marty Beil, executive director of the Wisconsin State Employees Union, saw the decision as “a victory for sunshine, for the citizens of this state.”

But the ruling was not grounded in reality, counters William Jacobson, associate clinical professor at Cornell Law School. Writing in his “Legal Insurrection” blogsite, he argued that Judge Sumi, far from being a defender of transparency, was a practitioner of judicial overreach. “Having read through the decision,” he wrote, “it is clear that Judge Sumi glossed over some key problems in her attempt to interfere in the middle of legislative action. Remember, she issued an injunction previously to stop the law from taking effect, in essence stopping the legislature from being the legislature.” He continued:

It is one thing for a court to rule on the validity of the law, but quite another thing for a court to stop the legislature from making law. Judge Sumi gives short shrift (at pp. 13-14) to the key Wisconsin case which says courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman. Judge Sumi summarily dismisses the import of Goodland by stating that it was a pre-Open Meetings law ruling. Well, chronologically yes, but the principle is the same; the courts rule on legislation, courts do not stop legislation from being made.

Professor Jacobson then lowered the boom:

…Judge Sumi made a fundamental – and unbelievable mistake. [She] found (Opinion at page 10, Findings of Fact and Conclusion of Law No. 79) that there was “no conflicting Senate” rule which would contradict Open Meetings Law time requirements.

But there was such a rule, Senate Rule 93(2), which provides that no notice to the public, other than posting on a bulletin board, is needed for a committee meeting when the Senate is in special session. In her findings (nos. 15, 29, 57), Judge Sumi found that the Senate was in special session at the time of the committee meeting at issue.

At no point in her decision does Judge Sumi address Senate Rule 93. If there were an argument why Rule 93(2) was not a conflicting rule of the Senate, one would have expected Judge Sumi to address it. I’d have to go back to the briefs to see how the parties (which did not include the legislators themselves) dealt with Rule 93(2), but certainly Judge Sumi is on notice of the Senate Rules and should have addressed Rule 93(2).

The Wisconsin Supreme Court soon will weigh in. The seven-member body, with four Republicans and three Democrats, is set to hear the issue on June 6. Republicans yesterday received a welcome piece of related news when JoAnne Kloppenberg, a Democratic candidate for the Supreme Court (judges are elected), announced she will not file a lawsuit challenging an election recount indicating she had lost to incumbent Republican David Prosser by slightly over 7,000 votes. She had claimed that there were ballot irregularities, including torn or open ballot bags. Yet there was no hard evidence that such physical defects were deliberate or that they affected any of the vote. Still, as the case is procedural rather than substantive, it is likely that one or more Republicans will affirm Judge Sumi’s ruling.

Even with a definitive state Supreme Court ruling, the issue will be far from resolved. Public-sector unions and their political allies this past spring conducted petition drives to recall six Republicans and three Democrats who voted for the collective bargaining curbs. Three of the recall petitions, each involving a Republican senator, will be put to the test in elections on July 12. If the Democrats win all three, they will gain control of the Senate by a 17-16 margin. In the other six recall petitions, which involve three members of each party, the state Government Accountability Board would determine whether to proceed with an election. On top of that, opponents of the law have filed two other lawsuits. And next month, state lawmakers must pass a budget before the June 30 biennial fiscal year deadline.

There is a certain self-fulfilling prophecy in all this. First, Democratic senators flee the state to short-circuit the democratic process. And afterward, they persuade a district attorney to file suit to “restore” that process. Assembly Minority Leader Barca claims he was the only Democrat at the conference committee meeting allegedly in violation of the Open Meetings Law. But had Democratic state senators remained in Madison, the controversy might not have materialized. Judge Sumi’s ruling, the product of merely one of 17 judges in one of 72 Wisconsin counties overriding the duly elected legislative and executive branches, does not appear to embody democracy in action. But when emotions run high in defense of union monopoly power, logic likely is a casualty.